dissenting.
To countenance the construction of the discretionary function exception of I.C. § 6-904(1) adopted by the majority would be to emasculate the Idaho Tort Claims Act, Title 6, Ch. 9, I.C. To construe the discretionary function exception to apply to all planning and operational decisions in traditional governmental functions does not further the general purpose of the Act as expressed in I.C. § 6-903(a). I dissent.
Prior to the adoption of the Idaho Tort Claims Act, Title 6, Ch. 9, I.C., which was the legislative response to our decision in Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970), the Court had held in Ford v. City of Caldwell, 79 Idaho 499, 321 P.2d 589 (1958), that an Idaho municipality would not be liable for the negligence of its officers and employees in the exercise pursuant to legislative authority of the governmental function of maintaining and operating a fire department. With the passage of the Idaho Tort Claims Act, the Court’s ruling in Ford v. City of Caldwell, supra, has been legislatively displaced. Therefore, to resolve the present case the Court should turn to the Act, our case law construing it, and other persuasive authority. Since the passage of the Act, the Court has considered the discretionary function exception to governmental liability in three cases: Dunbar v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979), cert. denied, 446 U.S. 983, 100 S.Ct. 2963, 64 L.Ed.2d 839 (1980); Gavica v. Hanson, 101 Idaho 58, 608 P.2d 861 (1980); and McClure v. Nampa Highway District, 102 Idaho 197, 628 P.2d 228 (1981).
*487In Dunbar, the Court searched federal and sister state authority in an effort to discern a general approach or rationale by which to determine whether a function or duty was discretionary and thus would be excepted from the ambit of governmental liability. At that juncture, the Court concluded that there was “no clear theory or philosophy as to the meaning or application of the ‘discretionary act’ exemption to the Tort Claims Act which is common to the federal and Idaho legislation.” Dunbar, supra, at 532, 602 P.2d at 30. The Court also concluded that with respect to the language of I.C. § 6-903(a) which provides for governmental liability “where the governmental entity if a private person or entity would be liable for money damages under the laws of the state ...” that
“there is no uniformity of interpretation of such language by courts nor are there alternative interpretations from which we might select as persuasive that one interpretation most supported by logic and reason. Rather, we find a melange of decisions wherein reason at times seems to have flown out the window.” Dunbar, supra, at 545, 602 P.2d at 43.
Despite such language, I believe that Rayonier Incorporated v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), considered in Dunbar presents helpful guidance. Rayonier was brought under the Federal Tort Claims Act, 28 ' U.S.C. §§ 1346(b) and 2671-2680, for losses alleged to have been caused by the negligence of federal employees in allowing a forest fire to be started on federal land and in failing to act with due care in fighting the fire. The Rayonier Court without explicitly considering the discretionary function exception found that negligent firefighting by governmental firefighters could result in governmental liability. I agree with the following language of Rayonier and believe it can be analogously applied to our own tort claims act:
“It may be that it is ‘novel and unprecedented’ to hold the United States accountable for the negligence of its firefighters, but the very purpose of the Tort Claims Act was to waive the Government’s traditional all-encompassing immunity from tort actions and to establish novel and unprecedented governmental liability.... Congress was aware that when losses caused by such negligence are charged against the public treasury they are in effect spread among all those who contribute financially to the support of the Government and the resulting burden on each taxpayer is relatively slight. But when the entire burden falls on the injured party it may leave him destitute or greviously harmed. Congress could, and apparently did, decide that this would be unfair when the public as a whole benefits from the services performed by Government employees.” Rayonier, supra, at 319-20, 77 S.Ct. at 377.
While traditionally municipalities have been immune from liability resulting from negligence in firefighting activities, Ford v. City of Caldwell, supra, I believe that the legislature has removed such immunity. In Dunbar we held that:
“our legislature has intended that wherein tort liability would attach to a private person, a governmental entity engaging in the same conduct will be liable. We do not ascertain an intent to create a new cause of action against a governmental entity for its attempts to govern.” Dunbar, supra, at 546, 602 P.2d at 44.
The activity in Dunbar which was held immune was governmental and had no parallel in the private sector. Here, I find no plausible reason to accord immunity to an activity which could conceivably be performed by a private entity. I see no distinction between a private individual negligently fighting a fire and the same activity performed by a municipal fire department. I feel that it would be irrational to hold such a private entity who is negligent in fighting a fire liable and a fire department who acts in the same negligent manner immune. See Gavica v. Hanson, supra. I cannot accept that such a result was contemplated by the legislature. In Dunbar the Court recognized that “although we may derive some scintilla of intent from the *488legislative language, we are left with the task of determining and enunciating policy.” Dunbar, supra, at 546, 602 P.2d at 44. I express my agreement with the following language of the United States Supreme Court:
“The broad and just purpose which the statute [Federal Tort Claims Act] was designed to effect was to compensate the victims of negligence in the conduct of governmental activities in circumstances like unto those in which a private person would be liable and not to leave just treatment to the caprice and legislative burden of individual private laws. Of course, when dealing with a statute subjecting the Government to liability for potentially great sums of money, this Court must not promote profligacy by careless construction. Neither should it as a self-constituted guardian of the Treasury import immunity back into a statute designed to limit it.” Indian Towing Company, Inc. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 126, 100 L.Ed. 48 (1955).
It must be noted at this juncture, that I.C. § 6-904(1) through (8) (1974 Idaho Sess.Laws, ch. 167, p. 1423) as effective at the time of the fire involved in the instant case provided exceptions to the potential governmental liability imposed by I.C. § 6-903(a). If possible all subsections must be given effect. University of Utah Hospital and Medical Center v. Bethke, 101 Idaho 245, 611 P.2d 1030 (1980); Norton v. Department of Employment, 94 Idaho 924, 500 P.2d 825 (1972). Subsections (2), (3) and (4) would be surplusage under the construction adopted by the majority. This is apparent particularly with respect to subsections (2) and (3). Subsection (2) expressly addresses activity by a law enforcement officer which would be unnecessary under the majority’s broad construction of subsection (l)’s discretionary function exception. In subsection (3), the legislature addresses another fundamental governmental function with respect to quarantines (public health) which is immune and which also would be embraced under the majority’s construction of the discretionary function exception making subsection (3) surplus:
I agree with the majority that the Court’s holding in Dunbar, supra, did not rest on I.C. § 6-904(1) but rather on I.C. § 6-903(a). Despite dictum in Dunbar, supra, that decisions by sister states provided no guidance with respect to construction of the discretionary function exception, I believe that the Court should reconsider and adopt the planning-operational distinction as an appropriate test of the discretionary function exception. See, e.g., Wainscott v. State, 642 P.2d 1355 (Alaska 1982); Johnson v. State, 636 P.2d 47 (Alaska 1981); Japan Airlines Co., Ltd. v. State, 628 P.2d 934 (Alaska 1981); State v. Abbott, 498 P.2d 712 (Alaska 1972); Andolino v. State, 624 P.2d 7 (Nev.1981); Bigelow v. Ingersoll, 618 P.2d 50 (Utah 1980); Frank v. State, 613 P.2d 517 (Utah 1980); Morrison v. Salt Lake City Corporation, 600 P.2d 553 (Utah 1979); Carroll v. State Road Commission, 27 Utah 2d 384, 496 P.2d 888 (Utah 1972).
I believe the following language of Frank v. State, 613 P.2d 517, 520 (Utah 1980) (state may be liable for state psychologist’s negligent performance), is instructive and provides a good rationale for distinguishing what is immune under a discretionary function exception:
“The exception to the statutory waiver here under consideration, however, was intended to shield those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseeable ways from individual and class legal actions, the continual threat of which would make public administration all but impossible. The one-to-one dealings of physician and patient in no way reflect this public policy-making posture, and should not be given shelter under the Act.”
The Utah Supreme Court has held that a discretionary function is
“ ‘confined to those decisions and acts occurring at the “basic policy making level,” and not extended to those acts and decisions taking place at the operational level, or, in other words, “... those *489which concern routine, everyday matters, not requiring evaluation of broad policy factors.” ’ ” Bigelow v. Ingersoll, 618 P.2d 50, 53 (Utah 1980) (quoting Frank v. State, 613 P.2d 517, 520 (1980)).
Planning decisions as to how many fire stations to build and how many firefighters to hire would be immune under such a rationale from liability under the discretionary function exception, but immunity would not be extended to routine everyday acts and decisions made by firefighters in fighting routine everyday fires.
Additional support for a planning-operational test can be garnered from a reading of recent decisions of the Alaska Supreme Court. See, e.g., Wainscott v. State, 642 P.2d 1355 (Alaska 1982); Johnson v. State, 636 P.2d 47 (Alaska 1981); Jennings v. State, 566 P.2d 1304 (Alaska 1977). In Wainscott, a case involving a motor vehicle accident at an intersection, the Court held that a decision with respect to traffic control devices was immune under the theory of the suit under a discretionary function exception similar to that found in I.C. § 6-904(1). The Wainscott Court stated:
“Not all decisions involving an element of discretion, however, fall within the discretionary function exception. As numerous courts have recognized, even the most ministerial of tasks involves some degree of discretion. See Jennings v. State, 566 P.2d 1304, 1312 n. 30 (Alaska 1977); Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 245, 447 P.2d 352, 357 (1968) (it is difficult to conceive of any act that does not admit of some discretion, even if it involves only the driving of a nail). Rather, the exception applies and immunity attaches when a decision entails governmental planning or policy formulation. Japan Air Lines Co. v. State, 628 P.2d 934, 936 (Alaska 1981); State v. I'Anson, 529 P.2d 188, 193-94 (Alaska 1974). A decision or action which merely implements a preexisting policy is considered operational in nature, undeserving of protection under the discretionary function exception. State v. I'Anson, 529 P.2d 188, 194 (Alaska 1974). Thus, the distinction is ‘between basic policy formulation, which is immune, and the execution or implementation of that basic policy, which is immune, and the execution or implementation of that basic policy, which is not immune.’ Japan Air Lines Co. v. State, 628 P.2d 934, 936 (Alaska 1981).
“We recognize that this ‘planning level — operational level’ test is somewhat inexact. Nonetheless, it offers the advantage of focusing on the reasons for granting immunity to the state. See State v. Abbott, 498 P.2d 712, 721 (Alaska 1972). In applying the test, courts are required to isolate those decisions sufficiently sensitive so as to justify judicial abstention. In this fashion, the test serves to protect those decisions worthy of protection without extending the cloak of immunity to an unwise extent.” Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982) (footnotes omitted).
I dissent from the majority opinion because I perceive that its construction of the discretionary function exception emasculates the legislature’s intent to permit recovery in a broader spectrum of cases and for all practical purposes nullifies the intent and purpose of the Idaho Tort Claims Act. It leaves the victims of negligent conduct by the State without recourse.
BISTLINE, J., concurring. BISTLINE, Justice, joining the dissenting opinion of DONALDSON, C.J.I join the opinion of the Chief Justice, which is logical, persuasive, and founded on well-established principles of law. Only because 80 percent of the members of the Idaho Bar Association have been admitted since Idaho has had a Tort Claims Act do I see a responsibility to add my own views in a separate opinion — for which I make no apology in a case where the far-reaching effects of the majority opinion can scarcely be grasped.
The excerpt in Justice Donaldson’s opinion from Wainscott v. State, 642 P.2d 1355 (Alaska 1982), is extremely persuasive, and, to my mind, represents the view which I *490espoused in- our Dunbar v. United Steelworkers of America, 100 Idaho 523, 547, 602 P.2d 21, 45 (1979) (Bistline, J., dissenting). The Wainscott excerpt is better understood by adding to it the following sentence which follows the excerpt, and by adding also the footnote to the sentence:
“Applying these principles to the case at hand, we conclude that the decision to install flashing red and yellow lights in lieu of a sequential traffic signal constituted a planning level decision.4”
“4 We emphasize that Wainscott’s sole theory of negligence relates to the selection of the traffic control mechanism for the intersection. Wainscott does not allege, and the record does not suggest, that the department negligently designed or improperly positioned the red flashing stop light. Were this the case, there might be negligence on an operational level, actionable under AS 09.50.250.” 642 P.2d at 1357 (emphasis added).